Tuesday, November 17, 2015

Red River landowners take battle with feds to court

By Jim Malewitz

Editor's Note: This story has been updated throughout.

Seven families are suing the U.S. Bureau of Land Management in federal district court, accusing the agency of perpetrating an “arbitrary seizure” of land along a 116-mile strip of the river, whose meandering has spurred a century’s worth of property disputes along the Texas-Oklahoma border.

Wichita, Clay and Wilbarger counties — and the Clay County sheriff — have also signed onto the suit, filed late Monday in the U.S. District Court for the Northern District of Texas.

The group is bringing firepower from Austin. Lawyers from the Texas Public Policy Foundation, the state’s preeminent conservative think tank, are representing the North Texans on the foundation’s dime.

“Our mission,” said Robert Henneke, director of the foundation’s legal center, “is to judicially oppose federal overreach and abuse. And here we have the federal government seizing tens of thousands of acres of private property inside Texas.”

A spokesman for the bureau, which oversees millions of acres of public land and minerals, said Tuesday that the agency "remains committed to working with" the Red River community through its planning process. "We share the interest of all parties in clarifying ownership and identifying appropriate management alternatives," the spokesman, Paul McGuire, said in a statement.

The lawsuit comes about 19 months after the dispute first grabbed national headlines and sparked fiery comments from Texas leaders, including Gov. Greg Abbott, who said Tuesday that he supported the landowners in their fight.

“I applaud the private property owners and county officials for standing up against the federal government’s brazen attempt to take private property from Texans,” the Republican said in a statement. “I wholeheartedly support the landowners’ in their litigation against the Bureau of Land Management, and will be filing an amicus brief in support of their lawsuit."

Questions have swirled near the stretch of the river since December 2013, when bureau representatives arrived in North Texas to discuss updates to its resource management plans in Kansas, Oklahoma and Texas — specifically how the land would be used for the next 15 to 20 years.

The area includes about 90,000 acres along the Red River that the agency considers public land, with perhaps a third of it on the Texas side.

The agency has said its claim comes from a 1923 U.S. Supreme Court decision, one that delineated the boundaries between Texas and Oklahoma and assigned the feds the patches in between.

But Texans have long managed swaths of that area. They hold deeds to the land and have diligently paid their local taxes. The bureau has not fully surveyed the area, so it is not clear precisely where the public boundary lines intersect with private lands.

The agency plans to finalize the management scheme by 2018 at the earliest, frustrating residents who want a resolution now. The Texans are still paying local taxes on land they can't sell and are reluctant to make improvements amid the confusion.

The bureau has not decided whether it will close off parts of the land or make it open to the public. But since few stretches are accessible without crossing onto indisputable private property, the most likely option would involve selling off the land.

Federal officials have said they understand why Red River dwellers are concerned, but they have a strict responsibility to manage taxpayer resources — in this case, the land. They have suggested that Texans can use the obscure federal Color of Title Act, a law meant to resolve confusion over public land that others believed was private, to buy back their land, potentially for a low price. But that 87-year-old law has plenty of drawbacks, including a 160-acre limit and the inability to transfer the mineral rights beneath those lands.

The lawsuit argues that the federal government has misinterpreted Supreme Court rulings and the way the river has carved new paths in the soft land over the decades, causing the bureau to erroneously expand its footprint — in some cases more than a mile away from where the river flows now — and threaten the constitutional rights of landowners.

The bureau’s “vague assertions of ownership have put a cloud upon individual plaintiffs’ titles, preventing them from disposing of their property, borrowing against their property or otherwise fully enjoying their property,” the suit says. It's the feds’ duty, the North Texans' lawyers argue, to prove through surveys where precisely their claim extends.

The plaintiffs include Patrick Canan, who has owned the title to about 2,000 acres of land for farming and ranching in Wichita and Clay counties since 1963. The bureau estimates it owns about 1,400 of those acres, the suit says.

Kenneth Aderholt, meanwhile, holds the title to about 700 acres in Wilbarger and Wichita counties — about half of which the feds claim. His family has farmed and ranched there since 1941.

The complaint also argues that the federal government’s claim has jeopardized the counties’ sovereignty and their ability to levy taxes on the land and “regulate and provide services for the health, benefit and welfare of its citizens.”

Kenneth Lemons, Jr., the Clay County sheriff, has also signed onto the lawsuit, which argues that the murkiness prevents him from enforcing certain criminal laws — like those related to poaching or trespassing — on lands he’s not sure who owns. That potentially makes him liable for any consequences, the lawsuit argues.

Area residents have expressed concerns over safety along the disputed stretch, according to survey results the bureau published last year. Some objected to encroachments from dirt bikers, four-wheelers, feral hogs and trespassers. A few said methamphetamine labs had cropped up on the land law enforcement officers seldom patrol.

Though it’s not clear whether the state of Texas would have standing to wade into the private property dispute, some are calling on its leaders to add their names to the lawsuit.

Henneke, of the Texas Public Policy Foundation, suggested that the state could still argue that the bureau is threatening its sovereignty.

Texas Attorney General Ken Paxton has not said whether he will join the fight. On Tuesday, Cynthia Meyer, his spokeswoman, said the Republican "is concerned" with the bureau's actions and "is monitoring the situation."

As the litigation winds through court, Texans in Congress are pursing a legislative solution in a perennially gridlocked body. U.S. Rep. Mac Thornberry, R-Clarendon, and Sen. John Cornyn of Texas are pushing fixes that would require surveys of the entire disputed stretch, expand Color of Title Act provisions and prevent any contested lands from being included in the federal resource management plan.

Thornberry’s bill passed out of the House Committee on Natural Resources in September.

The Texas Public Policy Foundation is a corporate sponsor of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.